Citation Nr: 1338133
Decision Date: 11/20/13 Archive Date: 12/06/13
DOCKET NO. 10-26 765 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss disability.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Florida Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. M. Donahue, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1965 to September 1967.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA).
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2011; a transcript of the hearing is included within the claims file.
The issue was previously remanded in January 2013.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran has contended that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). In addition, the July 2007 VA examination found the Veteran to have bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385.
In this case, the July 2007 VA examiner noted hearing loss and tinnitus are less likely as not caused or the result of military noise exposure and are most likely due to non-military etiologies such as aging, long-term occupational noise exposure, diabetes, and caffeine. The Board notes that per a July 2009 rating decision, the Veteran is service-connected for diabetes. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995).
The Board remanded the issues for a clarifying opinion in January 2013. The AMC obtained a VA opinion dated in April 2013. However, the Board finds that the opinion rendered is inadequate. The physician determined that she could not give an opinion concerning cause or aggravation due to diabetes without mere speculation. Before the Board can rely on the examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
Therefore, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any hearing loss or tinnitus that may be present and whether such disabilities are secondary to a service-connected disability.
Accordingly, the case is REMANDED for the following action:
1. The AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claims.
2. The Board notes that in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review should be conducted of the electronic file, and if documents contained therein are deemed to be relevant to the issue on appeal and are not duplicative of those already found in the paper claims files, action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims files and provide medical opinions in conjunction with the development requested herein.
3. After completing the above actions, the AMC should refer the Veteran's claims folder to the April 2013 VA examiner or, if she is unavailable, to another suitably qualified VA audiologist for a clarifying opinion as to the nature and etiology of any bilateral hearing loss and tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.
The examiner should then state an opinion whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current bilateral hearing loss and/or tinnitus is either:
(a) due to or etiologically related to his service-connected diabetes or
(b) aggravated by his service-connected diabetes.
If aggravation is shown, the examiner should specify what permanent, measurable increase in the severity of tinnitus and/or hearing loss is attributable to the service-connected diabetes.
Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).
4. Then, the AMC should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
_________________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).